Citation Nr: 18154926 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-54 953 DATE: December 4, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for migraine headaches is denied. FINDING OF FACT For the entire appeal period, the Veteran’s migraine headaches have not been completely prostrating and prolonged and productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1101, 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2007 to February 2010. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2016 rating decision, which continued a 30 percent rating for migraine headaches. Entitlement to a disability rating in excess of 30 percent for migraine headaches. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2017); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As such, the Board has considered the Veteran’s claim from July 2014 to the present. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran’s migraine headaches have been rated as 30 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran contends that her migraine headaches are more severe than reflected in her current disability rating. Specifically, she claims that she is unable to maintain full-time employment due to migraines, irritable bowel syndrome, and anxiety and that she is on a reduced work tolerance due to her migraines and other reasons. She states that her migraines are so bad that her body goes numb, lights bother her, medication does not always fully work, and she must frequently lay down. Under DC 8100, migraine headaches that occur with characteristic prostrating attacks on an average of once a month over the last several months warrants a 30 percent disability rating. Migraine headaches with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8100 (2017). The term “prostrating attack” is not defined in regulation or case law. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). However, prostration can be defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012). As to the term “productive of economic inadaptability,” such term could have either the meaning of “producing” or “capable of producing” economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). VA treatment records reflect that the Veteran was prescribed sumatriptan as needed for migraines, but October and November 2014 VA treatment record problem lists were negative for headaches. A May 2015 Residual Functional Capacity examination reflects the Veteran reported occasional headaches relieved by Zomig. In June, July, and August 2015, the Veteran reported having, at most, one to two headaches per week, and that her disabilities were stable. However, her physician noted that her headaches appeared to average three to four times a week. In July 2015, the Veteran requested a reduced work tolerance due to an increase in her anxiety from juggling school and taking care of her disabled daughter. The Veteran was afforded a VA examination in September 2015. The Veteran reported that her migraines had worsened since her last examination, and recalled a migraine where she spaced or blanked out and that her body went numb. The examiner noted symptoms of constant head pain, pulsating or throbbing head pain, pain on both sides and/or one side of the head, pain worsened with physical activity, nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. The examiner indicated that the Veteran’s headache pain typically lasted one to two days. The examiner found the Veteran had characteristic prostrating attacks of migraine pain, on average of once a month over the last several months. The examiner found that the Veteran’s prostrating attacks affected her ability to work, in that it limited her ability to concentrate during physical and sedentary work. However, the examiner indicated that the Veteran did not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. An October 2015 VA psychiatric examination reflects that the Veteran was unable to pursue her interests due to her busy schedule and financial restrictions. The Veteran reported failing multiple classes primarily due to her attention deficit disorder, and denied issues with attendance at school. October 2015 private treatment records reflect that the Veteran reported having infrequent headaches, averaging about two a month. She reported having a migraine a few days before with numbness and tingling in her right leg, but her physician noted the Veteran had a history of numbness and tingling in her lower right extremity for quite some time and had been advised to purchase a gel cushion to prevent presumed peroneal neuropathy. In March 2016, the Veteran reported getting daily tension headaches, but migraines only once or twice a month. She visited an urgent care facility, where she reported a migraine lasting for three days and was prescribed Fioricet. Based on the above, the Board finds that a rating in excess of 30 percent for migraine headaches is not warranted. In this regard, the Board finds that the evidence does not show that the Veteran suffers from migraine headaches with very frequent completely prostrating and prolonged attacks producing, or capable of producing, severe economic inadaptability as required for the next higher rating. The Board acknowledges that the Veteran reports experiencing severe headaches up to three or four times a month. The evidence of record indicates that the Veteran’s headaches have fluctuated in frequency and intensity throughout the appeal period, with migraines averaging one to four times per month. While she reported one migraine lasting three days, on average, each lasts one to two days. While the Veteran has reported that she must stay in bed during severe headaches and that her headaches have caused severe economic inadaptability, the evidence reflects that the Veteran denied attendance problems at school and that she failed her classes and was on reduced work tolerance due to her anxiety and attention disorder, rather than her migraine headaches. Further, the September 2015 VA examiner clearly found that the Veteran did not have headaches with very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board acknowledges the Veteran’s contentions that her migraine headaches average more than once a month, as contemplated under the 30 percent rating, and thus her migraine headaches should be evaluated at 50 percent disabling. However, the criteria set forth in DC 8100 for migraines are successive, meaning that in order to award the highest 50 percent rating, migraines must be very frequent completely prostrating and prolonged and productive of severe economic inadaptability. See Johnson v. Wilkie, No. 16-3803, 2018 U.S. App. Vet. Claims LEXIS 1253 (Vet. App. September 19, 2018). Despite the Veteran’s contentions concerning frequency of her migraine headaches, the evidence of record does not reflect that the Veteran’s migraine headaches are completely prostrating and prolonged and that they are productive of severe economic inadaptability. Rather, her migraines have been described as characteristically prostrating and of average duration of one to two days. Furthermore, while her migraines are noted to reduce her concentration, the evidence does not reflect that her migraines have resulted in absences from class or that her migraines were the reason for a reduced work tolerance. The Board has carefully reviewed and considered the Veteran’s lay statements regarding the severity of her service-connected migraine headaches. However, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.   In reaching these conclusions the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert, supra. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel